Opinion
Opinion Filed March 18, 1926.
A Writ of Error to the Circuit Court for Dade County; A. J. Rose, Judge.
R. B. Schallern, for Plaintiff in Error;
J. B. Johnson, Attorney General, and Marvin McIntosh, Assistant, for Defendant in Error.
The plaintiff in error was convicted of murder in the second degree and the case is brought here upon writ of error. The assignment of error based upon the denial of motion for new trial cannot be considered, as such motion for new trial was not embraced in the bill of exceptions. A motion for a new trial is not a part of the record proper, but must be embodied in the bill of exceptions, together with the ruling thereon and the exceptions to such ruling, in order to present to the appellate court for consideration an assignment of error based upon the denial of such motion.
Five special charges were requested by the defendant and refused by the trial court, one general exception being taken to the refusal to give all five of such requested charges. Some, if not all of these charges, were properly refused. The rule is well settled that a general exception to the refusal to give two or more requested instructions asserting separate and distinct propositions of law, will be overruled if it appears that any one of such instructions was properly refused.
We do not find any merit in the remaining assignments of error.
Aside from all this, the judgment sought to be reviewed is not made to properly appear in the record.
The Writ of Error is therefore dismissed.
ELLIS AND STRUM, J. J., concur.
WHITFIELD, P. J., AND TERRELL AND BUFORD, J. J., concur in the Opinion.